People v Kuzdzal (
| People v Kuzdzal |
| May 8, 2018 |
| DiFiore, Ch. J. |
| Court of Appeals |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected through Wednesday, August 29, 2018 |
[*1]
| The People of the State of New York, Appellant, v Matthew Kuzdzal, Respondent. |
Argued March 28, 2018; decided May 8, 2018
People v Kuzdzal,
On this appeal, we are asked to determine whether the trial court abused its discretion when it chose not to conduct an inquiry of two sworn jurors pursuant to People v Buford (
Defendant was convicted, upon a jury verdict, of murder in the second degree and predatory sexual assault against a child. The issues before us arise from an allegation made by a courtroom spectator at the close of the evidence at defendant's trial. The record is clear that, on the day in question, the jury entered the courtroom at 9:44 a.m. and the trial continued uninterrupted until the defense rested and the jury was dismissed for the day at approximately 12:04 p.m. The next morning, the trial continued through summations and the court recessed at 10:35 a.m. Shortly thereafter, defense counsel reported to the court that a spectator claimed that, while outside the courthouse the day before, she overheard two female jurors in conversation using a derogatory term to refer to defendant. The trial court immediately directed the spectator to take the witness stand and proceeded to take her sworn testimony.
The spectator specifically testified that on the day before, during a 15-minute recess taken by the court, she and her friend were outside the courthouse where she observed two female jurors smoking a cigarette "talking about [defendant's] a scumbag." She and her friend briefly stopped and listened to the conversation and, later, because she did not think it was "right," notified defense counsel. The spectator further stated that these jurors were in the back row laughing and making faces during the trial.
However, the spectator's testimony was inconsistent as to when the alleged misconduct occurred. The spectator initially stated that the jurors' remarks occurred "after court." Upon further questioning by counsel, the spectator posited that the incident occurred during a 15-minute break in the morning. When told there was no 15-minute break in the morning, she changed her testimony, claiming the conversation took place{**
At the end of the examination, defense counsel asked the court to perform an inquiry of the jurors. The prosecutor argued that the elicited testimony did not meet the standard necessary to trigger the inquiry and asked the court to "make a ruling as to whether [you] find this description credible first." In immediate response, the judge denied defendant's request, stating: "I don't believe that an inquiry of the juror is necessary or appropriate here . . . [b]ased on what I heard."
The Appellate Division opined that the trial court made no findings, express or implied, including as to the spectator's credibility. Describing the trial court's ruling as conclusory, it held the court failed to make "an implied determination that the observer's testimony was incredible" (
A defendant's constitutional right to an impartial jury verdict is fundamental (see NY Const, art I, §§ 6, 2; US Const 6th, 14th Amends) and the procedure mandated in our Buford decision to protect that [*3]right is critical to our criminal justice system. Two statutory provisions afford the necessary constitutional protection to defendants: CPL 270.35, which governs the procedure for discharge of a sworn juror; and CPL 270.20, which dictates the procedure to be employed when a prospective juror is challenged for cause. As the spectator's allegation concerned two sworn jurors, CPL 270.35 is implicated. That provision mandates that
"[i]f at any time after the trial jury has been sworn and before the rendition of its verdict, . . . the court finds, from facts unknown at the time of the selection of the jury, that a juror is grossly unqualified to serve in the case or has engaged in misconduct of a substantial nature . . . the court must discharge such juror" (CPL 270.35 [1]).
We have explained that the standard for discharging a sworn juror pursuant to CPL 270.35 "is satisfied only 'when it becomes obvious that a particular juror possesses a state of mind which would prevent the rendering of an impartial verdict' " (Buford,
Here, unlike many of our prior cases, the allegation of juror misconduct did not come from the wording of a jury note, the personal observations of court personnel, or a statement from an individual juror. Instead, the allegation came from a courtroom spectator—and defendant's lifelong friend. The trial court, when presented with the third-party allegation of juror misconduct, rather than immediately questioning the jurors, and possibly unnecessarily intruding on the sanctity of the jury, instead chose to first question the source of the allegation to ascertain its reliability. The trial court—which demonstrated its careful attention to the proceedings as evidenced by its earlier removal of a juror who had fallen asleep during trial and its utilization of a Buford inquiry with respect to the alleged conduct of a different juror—called the spectator to the stand and asked her a series of questions under oath. The court's determination to examine the source of the allegation before proceeding to a Buford inquiry of the sworn jurors based on the mere reporting of the allegation itself is within the discretion of the trial court and is, indeed, a procedure that has been found to be reasonable (see People v Matiash,
In People v Matiash, the Appellate Division reviewed the action of the County Court in conducting an inquiry of a witness as opposed to a juror. The Third Department stated:
"County Court chose to begin its in camera interrogation not with the jurors themselves, but rather with the witness in an effort to first ascertain exactly what that witness had seen and heard. This being the least disruptive method of initially ascertaining the particulars, we see no error in this mode of proceeding" ([*4]197 AD2d at 796 ).
Thus, as here, the trial court in Matiash used its fact-finding power along with its unique ability to assess the demeanor of the witness alleging juror misconduct to conclude that the allegations did not trigger a Buford inquiry. In Matiash, the trial court's conclusion was based on the "innocuous" nature of the allegation (id.). In this case, the trial court's conclusion was based on the lack of credibility of the interested spectator. While the trial court's reasoning here was not as explicit as{**
We have previously allowed that a trial judge, in the exercise of his or her discretion, may fashion an appropriate procedure to initially determine whether a Buford inquiry is required under the facts of the particular case. For example, in People v Mejias (
In this regard, a trial court's "investigation of juror misconduct or bias is a delicate and complex task" (United States v Peterson,
We emphasize that our procedure set forth in Buford stands as the framework to evaluate sworn jurors who allegedly engaged in substantial misconduct preventing the rendering of an impartial verdict. Trial courts, when presented with some credible information indicating that a sworn juror may be grossly unqualified, must conduct a "probing and tactful inquiry" of the juror (see
Under our system of appellate review, every litigant is afforded at least one review of the facts (People v Bleakley,
Regarding the second issue presented on this appeal, the trial court did not commit reversible error by failing to state its express reasons for denying defendant's request for a Buford inquiry after the examination of the spectator (compare Buford,
Accordingly, the order of the Appellate Division should be reversed and the case remitted to that Court for consideration of the facts (CPL 470.25 [2] [d]; 470.40 [2]), and issues raised but not determined on the appeal to that Court.
Wilson, J. (concurring). I concur in the result, but believe that both the Appellate Division majority and dissent have evaluated this case under the wrong prong of CPL 270.35—"grossly unqualified to serve"—instead of the prong applicable here: "engaged in substantial misconduct." I would therefore reverse and remit so the Appellate Division could evaluate Mr. Kuzdzal's appeal under the correct prong, which it never considered.
CPL 270.35 (1) provides two distinct grounds requiring dismissal of a juror: when a juror (i) is "grossly unqualified to {**
Here, the Appellate Division analyzed Mr. Kuzdzal's claim under the "grossly unqualified" standard, which concerns the inability of a juror to decide a case impartially, when the facts alleged here pertain to the "misconduct" prong.[FN2] Mr. Kuzdzal's friend claims to have observed two jurors laughing and making faces at an unspecified point during the trial, and, after all the trial evidence had been presented, including Mr. Kuzdzal's testimony, to have overheard one of those two jurors state to the other that Mr. Kuzdzal was a "scumbag."
We ask jurors to enter a case with an open mind; to base their decision on the evidence at trial only; to decide the facts; to apply the law as given by the court; and not to discuss the case among themselves until they are charged. We do not ask them to avoid forming views—subject to the court's charge and later deliberations—as they hear the evidence, about the credibility of witnesses, which facts they believe, or guilt or innocence. We do not ask jurors, after they have heard all the evidence{**
What evidence had the jurors heard before one told another that Mr. Kuzdzal was a scumbag? A five-year-old boy was dead. The boy's mother had been in a relationship with Mr. Kuzdzal since November 2012, and they shared an apartment together. She left her child in Mr. Kuzdzal's care while she went on errands. No one else was in the house when her son was injured, or at any time that day.
[*7]When they arrived at the apartment, Mr. Kuzdzal told the first responders that the child had fallen down the basement stairs carrying a laundry basket, that he was only out of Mr. Kuzdzal's sight for about five minutes, and that about 20 minutes passed between when Mr. Kuzdzal discovered him at the bottom of the stairs and when the paramedics arrived.
Later, Mr. Kuzdzal gave a different account, saying that he smoked synthetic marijuana that afternoon and watched a movie for 45 minutes or an hour, and that he then went to check on the child and found him at the bottom of the basement stairs, unconscious. Mr. Kuzdzal reported that he brought the child upstairs and put him in a cold shower, hoping he would wake up, and remained in the bathroom with him for about 30 minutes. Mr. Kuzdzal claimed he then dressed the child, who remained unresponsive, and put him on the couch, at which point he was "throwing up nasty stuff" and Mr. Kuzdzal attempted to give him CPR, texted the child's mother and asked her what to do, and then called 911 upon her instruction.
Then, when asked about the injuries to the child's rectal area, Mr. Kuzdzal told one of the detectives that he would tell him the truth about what happened if the detective did not charge him with rape. Mr. Kuzdzal then amended his account again, saying that around 4:30 or 5:00 p.m., the child had urinated in his pants; Mr. Kuzdzal got angry and pushed him{**
At trial, Mr. Kuzdzal gave a yet-different account of the child's death. Although he previously denied it, he testified that he had used heroin that morning and that he bought additional heroin early that afternoon. He further testified that when he pushed the child toward the shower and he hit his head, that the child was immediately unconscious. Mr. Kuzdzal admitted that he previously had lied to police repeatedly about what had happened that day.
The jurors also heard the following from other witnesses. The paramedics who responded to the 911 call testified that it was difficult to insert a breathing tube into the child's throat because there was so much blood in his airway. The emergency room doctor testified that when the child arrived his pupils were both dilated, fixed and unresponsive, and that his body temperature was very low, at 31.8 degrees Celsius. The doctor from the Pediatric Intensive Care Unit (PICU) at the hospital testified that a substantial amount of force would have been required to cause the fracture to the back of the child's skull. The surgeon who performed an emergency craniotomy on him testified that the appearance of his brain matter was not that of a child who had been recently injured, but one whose brain had been deprived of oxygen for hours.
After surgery, the PICU doctor conducted another examination and observed that the child was bruised on his nose, shoulders, arms, spine and rectal area, and had abrasions on his hips and rectal area. The sexual assault nurse examiner then examined him, and testified that he had sustained lacerations and bruising consistent with blunt force trauma and penetration of his rectum. A forensic biologist testified that the child's underwear was recovered from the apartment, and that a white-ish stain on them was tested for DNA material, which matched that of Mr. Kuzdzal. After the child died, the Erie County Medical Examiner's Office performed an autopsy, and the Medical Examiner testified that all of the injuries occurred at about the same time, and that the cause of the child's death was blunt impact trauma to the head.
If we could read the minds of jurors, would we remove from the jury any who, at the close of evidence, believed Mr. Kuzdzal was a scumbag? Of course not. The problem here is that{**
[*8]In People v Mejias, we held that premature deliberation does not necessarily require removal of a juror, nor does it even necessarily trigger a Buford inquiry (
In my view, then, a proper application of CPL 270.35 requires that the Appellate Division evaluate Mr. Kuzdzal's claim under the "substantial misconduct" prong only. (In that regard, it is worth noting that Supreme Court's questioning of Mr. Kuzdzal's friend was principally directed at exhausting the substance of what she knew, not her credibility; the prosecutor's questions were directed at credibility.){**
I therefore concur in the judgment.
Rivera, J. (dissenting). This appeal involves allegations that empaneled jurors made disparaging remarks and acted in a manner that suggested they were "grossly unqualified" to continue serving on defendant Matthew Kuzdzal's jury, and the trial court should thus have made an inquiry of the jurors to determine if they had to be discharged pursuant to Criminal Procedure Law § 270.35 (1). Law and the record below amply support the Appellate Division's decision that there was credible information of possible juror bias before the trial court and that the court therefore erred in denying defendant's motion to inquire of the jurors.
I agree with the majority that there may be situations when a trial court should assess the credibility of allegations of juror misbehavior in deciding whether to conduct the individual juror inquiry necessitated by CPL 270.35 (1) and mandated by People v Buford (
I dissent because the majority's remittal to the Appellate Division is unnecessary, as there is no error by that Court within our authority to correct. Even if I agreed that some error taints the Appellate Division's decision, I could not join the majority, since its directive is inconsistent with the logic of its own opinion and of the holding below.
At defendant's trial, between summations and the jury charge, defense counsel approached the bench for an off-the-record conference. The court then called to the stand a trial observer—a lifelong friend of the defendant—who had been in and around the courtroom. The observer testified under oath that she and a friend heard two jurors, whom she specifically identified, refer to the defendant by a derogatory term. The observer further testified that the same two jurors had been laughing and making faces during trial.{**
After the testimony, defense counsel asked the court to make an inquiry of the jurors. In response, the prosecutor opined that the testimony did not meet the standard necessitating an inquiry and that the court should decide first whether the observer's testimony was credible. The trial judge then stated that, based on what he had heard, "I don't believe that an inquiry of the juror is necessary or appropriate." The court noted defense counsel's objection and called in the jury for final instructions before deliberations.
On appeal, the Appellate Division made two determinations relevant to the trial court's denial of defendant's motion to inquire. First, the Appellate Division found record support of possible juror bias (see
The Appellate Division's first determination—about the existence of credible information before the court—was a purely factual determination based on its review of the record. Our power to review that determination is strictly limited (see generally Arthur Karger, Powers of the New York Court of Appeals §§ 21:6, 21:10 [3d ed rev 2005]). Indeed, if the Appellate Division made its own assessment of the credibility of the witness, it made a purely factual judgment, which we have no power to revise at all (see People v Albro,
The second determination—that the observer's testimony met the standard for requiring an inquiry of the jurors—was clearly a decision on a question of law. The Appellate Division{**
A defendant's right to trial by an impartial jury is guaranteed by our Constitution and the CPL (see NY Const, art I, § 2; CPL 270.35 [1]; People v Spencer,
"the trial court must question each allegedly unqualified juror individually in camera in the presence of the attorneys and defendant. Counsel should be permitted to participate if they desire. In a probing and tactful inquiry, the court should evaluate the nature of what the juror has seen, heard, or has acquired knowledge of, and assess its importance and its bearing on the case. In this context, the court should carefully consider the juror's answers and demeanor to ascertain whether [the juror's] state of mind will affect [the juror's] deliberations" (Buford,[*9]69 NY2d at 299 ).
Another essential part of this framework is the creation of a record of the trial court's decision and underlying reasoning (see id. ["The trial court's reasons for its ruling should be placed on the record"]).
Allegations that two jurors referred to the defendant by the derogatory term "scumbag" and laughed and made gestures during trial raised the possibility that they were no longer impartial or had become close-minded, and thus were unable to properly fulfill their role as unbiased finders of fact (see{**
The majority misreads the Appellate Division decision and so now unnecessarily remits to that court "to consider and determine whether the trial court's credibility finding was supported by the weight of the evidence" (majority op at 486-487). It is not clear what error the Appellate Division actually committed, though, or what effect, if any, the ordered reconsideration will have on its disposition of the case. Moreover, the "weight of the evidence" standard adopted by the majority is referenced without citation or explanation as to its applicability to an assessment of a sworn juror's qualifications.
As the majority expressly confirms, it holds that the Appellate Division did not make any judgment about the trial court's credibility determination, or reach its own independent determination as to the import of the allegations. This conclusion is hard to square with the text, structure, and holding of the Appellate Division's decision. As quoted above, the Appellate Division opinion includes language that shows it considered the allegations of the observer, and found that they "indicated the possibility of juror bias," which required that the trial judge make an inquiry of the jurors (
Read in context, moreover, it is clear that the Appellate Division majority was responding to the dissent, which argued that "[t]he record fully supports th[e trial court's] determination" that the "spectator's testimony was not sufficiently credible" (
The majority also misconstrues the meaning of the Appellate Division's characterization of the trial court's ruling as "conclusory" (id.). This statement is a response to the dissent's contention that the trial court's reasoning is obvious from the record (see
Even accepting the majority's interpretation of the case, its decision to remit is inexplicable. Assuming that, as the majority{**
What the majority intends the Appellate Division to do differently when it receives this case on remand is unclear. The{**
The majority suggests that the trial court might have "discretion" to forgo an individual inquiry even if it found the observer's allegations credible (see majority op at 487). As I discuss below (see infra part IV), this is mistaken, but, in any case, here the Appellate Division has already held as a matter of law that the observer's allegations rose to the level of requiring an individual inquiry. Even if the trial court had "discretion" to conduct an inquiry—which I dispute—then the Appellate Division has already implicitly held that it would be an abuse of discretion not to conduct one here, based on the allegations. The majority does not challenge this conclusion, and it is not clear from the majority's opinion what error the Appellate Division made that would make any difference to the outcome of this case.
At the heart of the majority's opinion is an interpretation of the case record. The majority reads the trial transcript and concludes that "the trial court made an implied credibility finding that the [observer] was not worthy of belief" (majority op at 480). Our Court sits as a court of law; this conclusion, then, must itself be a decision on the law. To that extent, we have the power to review the record for legal sufficiency, in order to determine that the trial court's action was, in fact, a credibility judgment. This, however, is where our analysis must end. Once we have read the record and found that the trial court did make a credibility determination, we may not evaluate that determination itself or otherwise assess the evidence on which it was based.
[*12]The majority today goes further, though. Part of the evidence the majority opinion relies on for concluding that the trial court made a credibility determination is that "the spectator's testimony was inconsistent" (majority op at
481). In other words, the majority today uses the fact that the observer was inconsistent as evidence for the proposition that the trial judge made an implicit credibility determination. Yet, it is not for us to opine on whether the observer was inconsistent or not. Our{**
To the extent that the majority is expounding on the procedure a court should follow to determine whether a juror must be discharged, I agree that in some situations a trial judge must first assess the credibility of the allegations that a juror may be "grossly unqualified" before proceeding to an inquiry of the juror. This is plainly congruent with New York precedent, which recognizes that, depending on the allegations and facts presented to a trial court, an inquiry of the juror may not be necessary (cf. Buford,
Such assessment should be limited, however. Faced with allegations that a juror is potentially grossly unqualified, a trial judge might need to assess the credibility of the person making those allegations, whether the source is another juror, court{**
Evaluating credibility in these two ways is not the only salutary effect of a trial judge's assessment of allegations of juror misconduct. Through this process, a judge may determine not only whether an inquiry of jurors is necessary, but also what the bounds of that inquiry should be, how to make that inquiry "probing and tactful" as required by Buford (
The majority's opinion today is deficient in the guidance it offers on how to conduct this assessment in two respects. First, the majority suggests that, even after a trial court has determined allegations of juror misconduct to be credible and that those allegations suggest the possibility that a juror is grossly unqualified, the court might still have discretion not to conduct a further inquiry or discharge a juror (see majority op at
487). The Criminal Procedure Law is unambiguous, however, that if a juror is "grossly [*13]unqualified," the trial court "must discharge such juror" (CPL 270.35 [1] [emphasis added]). The decision about whether to discharge a juror, then, and so whether to conduct a further inquiry to determine whether such juror must be discharged, is not discretionary at all, but mandated by statute (Buford,
Second, the majority characterizes the creation of a record of the trial court's reasoning as merely a "best practice to enhance {**
Although a trial court may conduct an assessment of an observer's allegations before proceeding to the "probing and tactful" inquiry our case law requires, I do not think the majority's rule is well crafted, and do not think it has been properly applied to this case. The majority today remits on the basis of a misreading of the Appellate Division decision. The conclusion it asks that Court to draw on remand, it has, in fact, already reached. Accordingly, I dissent.
Chief Judge DiFiore and Judges Stein, Garcia, Wilson and Feinman concur; Judge Wilson in a concurring opinion; Judge Rivera dissents and votes to affirm in an opinion; Judge Fahey taking no part.{**
Order reversed and case remitted to the Appellate Division, Fourth Department, for consideration of the facts (CPL 470.25 [2] [d]; 470.40 [2]) and issues raised but not determined on appeal to that Court.
Footnote *:Contrary to the dissent's assertion, our opinion does not disregard the prohibition on this Court "from weighing facts and evidence in noncapital cases" (see People v Jones,
Footnote 1:"Grossly unqualified" may also include cases in which a juror is unable to understand the proceedings (see People v Sanchez,
Footnote 2:In different circumstances, a derogatory comment by a juror might indeed raise an inference of bias. For example, had the juror called Mr. Kuzdzal a scumbag before opening statements, the statement would raise an inference that the juror was biased. Had the juror, after the close of evidence, said that Mr. Kuzdzal was a dealer in illegal firearms (which would be a complete fabrication), the court should have been concerned about both bias and misconduct. Here, however, the juror's alleged statement, made after the jury heard voluminous evidence of Mr. Kuzdzal's conduct, does not suggest bias, though it would be misconduct.
Footnote 3:The circumstances in Mejias are very similar, though not identical, to those present here. In Mejias, a juror note stating that "we" wanted to know something suggested that the jury had been discussing the case. The trial court then reminded the jurors they were not to discuss the case until deliberations began, and asked jurors who had "started discussing the evidence" to raise their hands (
Footnote 4:
" 'The history of the law,' as was well observed in the case of O'Brien agt. Merchants' Fire Insurance Company (38 N. Y. Sup. C. R.), 'discloses a struggle for centuries, to prevent juries from being approached by improper communications;' and I think it is as essential to the important and effective administration of justice, that the opinions and instructions of the court should be openly and publicly imparted, so far as litigants are concerned, as that the deliberations of the jury should be conducted with secrecy and in seclusion. Repeated infractions of this salutary rule, in exceptional instances, varied in accordance with the exigencies of each particular case, would gradually fritter it away, and ultimately effect its complete abrogation. It should be permanent and immutable. If trial by jury is to 'remain inviolate forever,' every safeguard to its sanctity must be jealously upheld" (Plunkett v Appleton, 51 How Prac 469, 473 [1876]).Footnote 1:If the Appellate Division's factual determination reversed an underlying trial court factual determination, and that factual determination was the basis of the Appellate Division's judgment, then not only may we not review that determination, but the appeal itself would not lie and should therefore be dismissed (see Karger § 21:10).
Footnote 2:The concurrence, by contrast, observes explicitly that "[n]othing about Mr. Kuzdzal's friend's observation raises any inference that a juror was biased or grossly unqualified to serve," and asserts that the alleged behavior, at most, reflects "that two jurors engaged in premature deliberations" (concurring op at 491). This begs the question. From the cold record, we simply cannot know whether the jurors' statements and actions betrayed bias, close-mindedness, or (as the concurrence assumes) premature deliberation. It is for this very reason that our case law requires judges to investigate allegations that implicate the impartiality of the jury, to determine whether jurors are competent to continue their service. This is true regardless of whether the allegations suggest that a juror is "grossly unqualified to serve" or "engaged in substantial misconduct," whether those two prongs are truly distinct or not.
In any case, this Court has never held that a trial court may simply ignore a juror's premature deliberation, only that "[p]remature deliberation . . . , by itself, does not render a juror grossly unqualified" (Mejias,